On 24 November 2015, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed a new Article 6 on “Clear and Reasonable Warnings” under Proposition 65, replacing the previous version of the proposed regulatory action published on 16 January 2015.
Proposition 65 is a Californian enforcement act which was first published in 1988 and requires the State to publish a list of chemicals known to cause cancer or birth defects or other reproductive harm. The Carcinogen Identification Committee (CIC) recommended the listing which must be updated at least once a year and now includes more than 900 chemicals. When a chemical joins the California list, a warning prior to exposure is imposed. This proposition also prohibits the discharge of listed chemicals into sources of drinking water.
According to the existing Article 6 regulation, a ‘clear’ warning clearly communicates the message that the chemical in question is known to the State of California to cause cancer, birth defects or other reproductive harm. Additionally, a “reasonable” warning uses reasonably calculated methods to make the warning message available to the individual before exposure.
The purpose of these new regulations is to improve the specificity necessary of safe harbor warnings providing more specific guidance and ensure that the public receives useful information about potential exposures. For that reason, new technology will be integrated and more compliance assistance will be given to affected businesses, At the same time, OEHHA aims to clarify the relative responsibilities of manufacturers and others in the chain of distribution by adding a specific section to the regulations for providing warnings for businesses in the chain of commerce versus retail sellers of a given product.
The proposed regulation will:
- Make warnings more visible (by using the familiar exclamation point symbol for most warnings)
- State that the product or the location can expose them to a listed chemical (as opposed to the current general practice of simply warning of the presence of a chemical)
- Identify at least one listed chemical to which people would be exposed
- Provide the URL for an OEHHA web site which will give general information about listed chemicals, products or locations commonly associated with those chemicals, and general advice for how to reduce or avoid exposures to those chemicals.
- Provide for warnings in non-English languages in cases where product labeling contains information in alternative languages or at locations where signs are posted in those language
OEHHA supports that this proposal will benefit the health, safety and welfare of California citizens. It also argues that small businesses will not be affected by the proposed regulatory action, because it does not impose any mandatory requirements on them. Proposition 65 won’t be implemented in businesses with less than 10 employees.
Finally, OEHHA offers sufficient time for written public comment regarding modifications to the proposed regulatory action until 22 January 2016. A public meeting on the new regulatory proposal will be held on 13 January 2016 and then OEHHA will have time to adopt a final amendment until 27 November 2016.